Mediation In The Court of Protection

In recent years the Courts have seen an exponential increase in Court of Protection (CoP) claims being issued. This is at a time when the Courts have had to cut their budgets. In all but the most urgent of cases, parties can face many months wait to obtain enough Court time for final hearings.

The Court of Protection is a specialist Court which protects the interests of people who have lost their mental capacity and are therefore unable to manage their own affairs. The Court has the power to appoint a ‘Deputy’ to deal with property and financial affairs and in some instances the health and personal welfare of the person who is no longer able to make their own decisions.  When a dispute arises in relation to a vulnerable person’s affairs, the Court of Protection has the jurisdiction to get involved and resolve those disputes.

However, it can take many months for an application to process through the Court before a hearing is listed. To try to ease pressure on the courts and speed up the time it takes to resolve disputes, a mediation pilot scheme has been set-up to evaluate whether mediation, when compared to litigation can save time and money by resolving issues which would otherwise have to be resolved by the Court at a final hearing.

While mediation is used to resolve disputes where proceedings have been issued in the Court of Protection, there has been little research into the effectiveness of it. However, in 2017 initial research findings on CoP mediation in the UK resulted in a working group being set up with a view to establishing a CoP mediation scheme.

Dr Jaime Lindsey of the University of Essex is the principal investigator undertaking this independent evaluation of mediation in the Court of Protection. The scheme is anticipated to run for around a year to eighteen months (start date 1 October 2019). It will be formally evaluated by academics at the University of Essex, led by Dr Jaime Lindsey.

What is Mediation?

Mediation is a voluntary process in which an impartial third party, a mediator, facilitates the resolution of a dispute with the aim of the parties reaching an agreement or settling their dispute at an early stage during legal proceedings.

A mediator facilitates communication, promotes understanding, focuses the parties on their interests, and engages the parties in creative problem-solving to enable them to reach their own agreement.

There is seldom any downside to mediation, and the benefits are:

Recognition: Parties gain the understanding of the other parties’ point of view, and an enhanced opportunity to be heard and understood themselves.

Empowerment: Parties are empowered to decide for themselves whether and how they would like to resolve a situation. This self-determination aspect of mediation often corresponds to higher aspirations of how individuals want to conduct their lives and consideration of other parties that may be affected by any decision making.

Speed: In resolving or narrowing disputes through mediation, parties avoid the delay of protracted court litigation.

Peace and avoiding bad outcomes: Mediation can spare parties the “win-lose” and “lose-lose”, outcomes associated with litigation and enable them to move forward from disputes efficiently and effectively.  As the settlement is their outcome, it can bring peace within family disputes, and the decision has not been forced on them by a Judge.

Economical: In resolving or narrowing areas of disputes through mediation, parties save an enormous amount of time, energy, and expense associated with protracted conflict and litigation.

Commitment of settlement: Studies indicate parties entering into voluntary agreements through mediation are far more likely to adhere to and fulfil commitments made in such agreements than they are with judicially imposed resolutions.

Transparency and confidentiality: Cases are not held in private but are in Public under transparency arrangements.  In comparison, what transpires at a mediation meeting is kept confidential. Any form of communication generated at mediation is inadmissible evidence.

How does COP mediation differ from traditional mediation?

Mediation in the Court of Protection is different from almost any other form of mediation because the parties are mediating about a third party, who will in most cases, not have capacity to enter into a mediation agreement. This means that the mediator must have expertise in the field of mental capacity to ensure that the agreement the parties reach is likely to be approved by the Court as being in the best interests of the party concerned.

There are currently 11 mediators from across England and Wales who will be taking part in the pilot scheme, but more are being asked to come forward to be included, who have the necessary skills.

Any professional wishing to take part in mediation under the scheme should visit the scheme website www.courtofprotectionmediation.uk/our-mediators/ and contact their chosen mediator in the first instance.

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